Rogue Advocates v. Jackson County

Approval of floodplain development permits while related appeal was pending was error requiring reexamination of the application under more formal notice and participation procedures.

Paul and Kristen Meyer (Meyer) own an asphalt batch plant that is located within the 100-year floodplain of Bear Creek. Batch plants were in operation on the property prior to it being zoned, and the zoning that has been applied does not allow batch plants. Meyer’s predecessor ran a concrete batch plant until 2001, when it was converted to an asphalt plant. In 2012, Meyer sought a verification that the plant was a legal nonconforming use and applied for floodplain development permits. The hearings officer denied the verification after finding that the plant was a legal nonconforming use, but that certain structures added later were unauthorized expansions. LUBA remanded the nonconforming use decision to the hearings officer in April 2014 with instructions to verify the nonconforming use “without considering as part of the verified use any unapproved alterations that occurred in 2001 or at other relevant times since 1992.” While those appeals were pending, Meyer applied for floodplain development approval in October 2013 for the structures that were determined to have been part of the legal nonconforming use and received approval. In February 2014, Rogue Advocates appealed that decision to LUBA. LUBA first entertained a jurisdictional challenge, but found that the exception in ORS 197.015(10)(b)(A) did not apply as the challenged “determination required ‘interpretation or the exercise of policy or legal judgment.’” Rogue Advocates argued that the county did not have the authority to decide on the floodplain permits until the nature of the nonconforming use had been established and the Board agreed. LUBA further held that the procedure followed in the floodplain permit approval had been incorrect and remanded to the county to follow a more formal notice and participation procedure. REMANDED.